Glen-Gery Corp. v. Zoning Hearing Board

907 A.2d 1033, 589 Pa. 135, 2006 Pa. LEXIS 1894
CourtSupreme Court of Pennsylvania
DecidedSeptember 28, 2006
Docket90 MAP 2005
StatusPublished
Cited by53 cases

This text of 907 A.2d 1033 (Glen-Gery Corp. v. Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glen-Gery Corp. v. Zoning Hearing Board, 907 A.2d 1033, 589 Pa. 135, 2006 Pa. LEXIS 1894 (Pa. 2006).

Opinions

[138]*138 OPINION

Justice NEWMAN.

Today we are asked to decide whether the plain language of Section 909.1(a)(2) of the Municipalities Planning Code (MPC), 53 P.S. § 10909.1(a)(2),1 or amended Section 5571(c)(5) of the Judicial Code, 42 Pa.C.S. § 5571(c)(5),2 con-trols the instant appeal and bars a procedural challenge to an ordinance as untimely if no challenge is mounted within thirty days of the “intended” effective date or, whether an ordinance is rendered void ab initio by its procedural defect thereby rendering inapplicable the limitations period. The underlying claim regarding the alleged procedural defect in enacting the ordinance is not before us; rather, we are asked only to address whether such a claim may be heard as timely. For [139]*139the reasons that follow, we reverse the Commonwealth Court and find that a claim alleging a procedural defect affecting notice or due process rights in the enactment of an ordinance may be brought notwithstanding the provisions of Section 909.1(a)(2) and Section 5571(c)(5) because, if proven, the ordinance would be rendered void ab initisdo.3

Facts and Procedural History

Glen-Gery Corporation (Appellant) desired to use all of its lands for non-coal surface mines with normal associated, related, and accessory uses, including bituminous asphalt plants, concrete batch plants, construction company activities, equipment repair facilities, offices, retail and wholesale of stone, and landscaping and related products. Appellant, therefore, filed a challenge to two of the Dover Township zoning and land use ordinances, alleging invalidity on the grounds of procedural defects that occurred during their adoption.4 The effective dates of these ordinances were in 1997 and 1995; however, Appellant did not bring its procedural challenge until 2002. As discussed further infra, Section 909.1(a)(2) and Section 5571(c)(5) both provide for a thirty-day time limit on challenges to an ordinance. As such, litigation of the issue was clearly untimely pursuant to the plain language of both Sections. 42 Pa.C.S. § 5571(c)(5); 53 P.S. § 10909.1(a)(2).

The Dover Township Zoning Hearing Board (Board), which has exclusive jurisdiction pursuant to 53 P.S. § 10909.1(a)(2) to [140]*140hear matters alleging procedural defects in the enactment or adoption of an ordinance, dismissed Appellant’s challenge as untimely filed. The Board relied on the decision of the Commonwealth Court in Schadler v. Zoning Hearing Board of Weisenberg Township, 814 A.2d 1265 (Pa.Cmwlth.2003) (en banc) (Schadler I), rev’d, 578 Pa. 177, 850 A.2d 619 (2004) (Schadler II). In Schadler I, the Commonwealth Court declined to follow the precedent of this Court and of prior Commonwealth Court decisions and held that procedural defects in the enactment of án ordinance did not render an ordinance null and void, and, in such cases, the thirty-day appeal period applied. Compare with Cranberry Park Assocs. v. Cranberry Twp. Zoning Hearing Bd., 561 Pa. 456, 751 A.2d 165 (2000) (holding that an ordinance that was not properly numbered, signed, dated, or recorded never became effective and concluding that an argument that the appeal was untimely because it was brought nearly eight years after the fact was unpersuasive and was not barred by the limitations period); Valianatos v. Zoning Hearing Bd. of Richmond Twp., 766 A.2d 903 (Pa.Cmwlth.2001) (holding that the rule stating that an appeal challenging a zoning ordinance had to be filed within thirty days of the effective date of an ordinance was inapplicable because the ordinance was void ab initio, and thus the ordinance never had an effective date to begin the thirty-day period (citing Section 909.1(a)(2))).

Pursuant to Schadler I, the Board concluded that the 2002 amendment to Section 5571(c)(5) of the Judicial Code also applied, requiring that challenges to the validity of an ordinance alleging a defect in its enactment be raised within thirty days “after the intended effective date of the ordinance.” 42 Pa.C.S. § 5571(c)(5) (emphasis added). This amendment retroactively applies to all procedural challenges commenced after December 31, 2000. Act of Dec. 9, 2002, P.L. 1705, No. 215, § 6 (Act 215). Hence, the Board concluded that Section 5571(c)(5) applied retroactively to this appeal, rendering it untimely. Although the Board acknowledged Appellant’s contention that retroactive application of Section 5571(c)(5) violated its right to due process, the Board noted that it lacked the [141]*141authority to declare a statute unconstitutional. (Zoning Hearing Board Decision, 4/25/03, at 7-8.)

Appellant appealed to the trial court, which affirmed the Board, also relying on Schadler I, Section 909.1(a)(2), and Section 5571(c)(5). The trial court noted that, at the time its Opinion was issued, this Court had granted review of Schadler I, heard argument, and our decision was pending. (Trial Court Opinion, 12/22/03, at 3 n. 1.). The trial court did not comment on the constitutionality of the statute or the void ab initio doctrine beyond referring to Schadler I and noting that we had granted allowance of appeal in the case but had not yet decided it.

Appellant filed an appeal and asked the Commonwealth Court to reverse. Prior to argument of the case sub judice in the Commonwealth Court, this Court reversed Schadler I, and held that procedural challenges to a municipal ordinance were not time-barred pursuant to either Section 909.1(a)(2) or the pre-2002 version of Section 5571(c)(5), because certain defects in enacting the ordinance rendered it void ab initio. Schadler II, 850 A.2d at 626-27. Moreover, before issuing an Opinion in the present case, the Commonwealth Court heard and decided Taylor v. Harmony Township Board of Commissioners, 851 A.2d 1020, 1028 (Pa.Cmwlth.), allowance of appeal denied,, 581 Pa. 686, 863 A.2d 1151 (2004), and noted that the procedural defects in the ordinance in Schadler II essentially eliminated its effective date and allowed for procedural challenges to be brought well past the thirty-day appeal period.

Thereafter, in a published Opinion in the instant matter, the Commonwealth Court, relying on Taylor affirmed the trial court’s denial of Appellant’s appeal, in contravention of our most recent decision. The Commonwealth Court stated:

Our Supreme Court specifically declined to address the impact of the amendment [to § 5571(c)(5) ] in Schadler [II] because it was not in effect when the landowner in that case brought his procedural challenge. In this case, though, amended Section 5571(c)(5) of the Judicial Code governs ....
[142]*142* * *
Because the thirty-day statutory period for challenging alleged defects in the enactment of an ordinance begins on the “intended” effective date “but for the alleged defect in the process of enactment or adoption,” Section 5571(c)(5) now means that the statutory period for bringing procedural challenges to local ordinances begins to run without regard to alleged procedural defects that potentially would preclude the ordinance from taking effect.

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Bluebook (online)
907 A.2d 1033, 589 Pa. 135, 2006 Pa. LEXIS 1894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glen-gery-corp-v-zoning-hearing-board-pa-2006.